J K 

5^8 






























LIBRARY OF CONGRESS. 


-....4 aqi^rtnW ‘iu.—. 


Shelf. 




UNITED STATES OF AMERICA. 


































OP 

i 

JAMES TALLMADGE, ESQ. 

11 

I 

I 

I ON 

I 

I THE SUBJECT OF GIVING THE CHOICE 


00 

PRESIDENTIAL ELECTORS 


TO 

XBE fboflb; 

1iV\ l\\e House o? Assembly, ou live 5t\i o5 
Augv\st, 1824. 

? ALBANY: 


i*IlINTED BY JOHN B. VAN STEENBEROII. 






V 



the Mhany Daily Adverti&er. 

GENERAL TALLMADGE’S SPEECH. 

We now present to our readers a sketeh of Gen. Tallmadge'S 
J^peech bn the Electoral Law, in the assembly, during the late ses¬ 
sion. We have bestovved much time and pains to make it perfect 
as possible ; and after all, we are constrained to say, it is but aiii 
imperfect likeness of the original. Perhaps those who heard it de¬ 
livered, will only give tis the credit of producing something which 
they can recognize as a faint resemblance of the eloquent appeal 
tvhich engrossed the intense attention of the house, and a crowded 
audience, for near four hours, when the countenances of men were 
Seen to lighten up and to lower, as they entered into the feelings of 
the speaker, and all seemed to yield themselves to the direction of 
the master spirit who plead for the Rights of Man, and poured forth 
the thunders of indignation against those who should prove recreant 
to the holy cause. 

Those who are acquainted with the difficulty of reporting de¬ 
bates, will excuse us ; for they know it is morally impossible to 
transfer to their sheets the warmth and manner of the speaker, 
even if they are so fortunate as to catch the whole of his matter. 
But there are liien whom no reporter can follow and do justice even 
to their language. General T. is of this class. Though possess¬ 
ed of a sonorous voice, correct pronunciation and clear enunciation, 
yet at times his manner is rapid and pUts at defiance the skill of 
ihe stenographer. Nor is this all. Ever and anon his elocution 
gradually rises, till like a mountain torrent it rushes bnward, demo¬ 
lishing the strong holds and prostrating the ramparts behind which 
his opponents have entrenched themselves, while he sweUps from 
his course the rubbish of sophistry ; when the writer, instead of 
noting down the progress of the speech, finds himself involuntarily 
listening to the speaker. But we have done our best ; and imper"- 
feet as our work goes forth to the world, we trust it will be suffi¬ 
cient to show that in Gen. T. the people had an able advocate ojf 
their rights, and the cause of liberty an undaunted champitjn. 



IN ASSEMBLY, August 4, 1824. 

The Assembly had under consideration the following resolutione 
from the Senate : 

Resolved, That since the last adjournment of the legislature, no- 
thing has transpired within the letter or spirit of the constitution, 
requiring an extraordinary session at this time, and therefore the 
proclamation of the governor, convening the same, is not warrant¬ 
ed by the constitution. 

Resolved, That inasmuch as the transaction of legislative busi¬ 
ness in obedience to a proclamation thus illegally issued, and es¬ 
pecially in relation to a subject which had been repeatedly dis¬ 
cussed and acted upon by the legislature at their kist meeting, 
would virtually sanction a violation of the constitution, and there¬ 
by introduce a precedent of dangerous tendency, it is due from the 
members of the legislature, as well to the constitution under which 
they sit, and the oath they have taken to support it, as to the 
highest and best interests of their constituents, that they should 
forthwith adjourn. Therefore, 

Resolved, (if the honorable the assembly concur,) That the two 
houses will immediately adjourn to meet again according to law. 

The Speaker had decided the two first resolutions were only as 
preface and recital, and that the question must be taken on the last 
resolution to adjourn. 

A motion was made to lay the resolutions from the senate on the 
table, with view to receive a motion to appoint a joint commit¬ 
tee to prepare and bring in a bill providing for the choice of the 
Electors of the President and Vice President of the United 
States. 

Mr. Tallmadge —In rising to address the house on the present 
occasion, I cannot forbear to express my acknowledgments to the 
chair, for the decision that the whole subject, for which the legis¬ 
lature has been convened, is now open to free discussion and lib¬ 
eral investigation. We have for the last three days been strug¬ 
gling to arrive at this point. Qjuestions of order and rules of form, 
have hitherto been interposed, and hitherto have prevented any 
statement of the question, which went to avow a final opinion up¬ 
on the merits of the present controversy. The present question 
being a motion to lay the resolution of the senate on the table, 
with view to receive a resolution to bring in an electoral bill, doei 
not even yet in form, present the point of dispute ; but in sub^ 
etaoice, it will not be misunderstood. And since the chair has ^ 


6 


Ifeiigth come to ihe decision, to open the debate on the whole mei it.;, 
the purposes of all can now be obtained. No matter into whau 
forhi. The sincere friends to the electoral law, and its real oppo- 
nenfe, can now marshal themselves into opposing ranks. Let it be 
explicitly understood, that the present motion to lay the resolutions 
of the senate on the table, is intended to bring to the test the prin 
ciples of men. The public will not misunderstand our votes on 
this occasion ; and according to those votes, we are to be classed 
hereafter, into two great parties. 

Permit me to remarkj in whatever terms I may express my sen¬ 
timents, in the progress of this discussion, I claim no right to im¬ 
peach the motives of any individual member of this house. It is 
my cnicial duty to respect the motives of etery member, and I 
am happy to say, that this duty accords With n'ly private feelings. 
However I may blame and deprecate the conclusions which gentle¬ 
men may have formed, and in whatever language I may oppose 
and combat such conclusions, let me not be misuijderstood, for I 
shall hold in high deference, and yet confess it is not my province 
to condemn, the motives and feelings of others. 

I cannot but felicitate myself and the honorable gentlemen with 
whom I am associated, in the successful efforts we have made to 
break the net of form in which we had been inclosed. No matter 
in what shape we are permitted to address the chair—no matter in 
what form the subject is presented, provided the people of this 
state can be enabled to see how, and by whom, their rights have 
been appreciated and defended on the one hand, and abandoned 
cind rejected on the other. If there be any one in this assembly 
who entertains doubts on the propriety of an electoral law, or who 
is unwilling to vote again on that question, let him be gratified iii 
his wish. I will only say that he who has once advocated that 
measure, with a cordial mind and devotedness of purpose, is 
bound to continue going on towards its consummation. It is a stale 
pretence to say he voted for it last wunter, and that is a sufficient 
declaration of his washes. It is his duty to Vote for thi3 law% 
again and again, and as often as the question shall come up from' 
time to time, and until time shall be no more. Let him then, vvhe 
felt himself unwillingly bound up by the net of form, rejoice that 
fje is loosed. Let him feel that he breathes the pure air of eman¬ 
cipation, and walk forth untrammelled, to the accomplishment of 
the great work, which the legislature was convened to perform. 

How then do w'e stand ? We hate under consideration a motion 
Uo lay the resolution from the senate on the table. It is accompa¬ 
nied by a motion to substitute a resolution to raise a joint commit- 
lee from the senate and assembly, to unite its wisdom to reconcile 
any differences betw’een the two houses, and to combine its efforts 
•u procure the enactment of an electoral law. And shall the peo¬ 
ple be told in this stage of the case, because that bill has once 
passed this house by a majority of 110 to 4, and was subsequently 
^^ostponed irt the senate^ that we aj-e now ready to adjottrn, and 


7 


vhat there is ao further hope of its passing ? Not so—we are noi, 
'here to be bound down with such mighty deference to the senate. 
I ask, will not the resolve of this house, proposing a joint com¬ 
mittee to prepare an electoral law, prove as much on our part 
the proposition from the senate to adjourn, can prove on their 
part ? I^will at least intimate an opposing opinion, and may lead to 
explanations, and ultimately secure the passage of the law. Let 
us treat that honorable body with all the respect to which it is en¬ 
titled ; but let us not forget the paramount obligations we are un¬ 
der to those to whom we, and they, at unequal periods, arc re¬ 
sponsible. If we really intend in good faith.to pass an electoral 
bill, let us by oitr acts indicate that intention. Let us explicitly 
declare our wishes—let u§ use our most cordial and strenuous ef¬ 
forts to insure its passage ; and if after all, we shall find that body 
immoveable, and set upon its purpose, we may then adjourn. It 
will then be understood by every individual in the community, 
where the responsibility rests ; and we shall be discharged from 
the duty which now lies so heavily upon ns. But if we remain 
trammelled by the rules and questions of order in this house, and 
embarrassed with such deference to the senate ; if we vote with 
puch cords upon us, and pretend that although we make and un¬ 
make our pleasure, the rules and orders of this house ; that, al¬ 
though we have bound ourselves with our own hands, yet that we 
cannot, at our pleasure, and with our own hands, unloose ourselves: 
our constituents will see through the disguise. They will perceive 
the want of inclination on our part, and our willingness to fail in the 
object of their desire. They will discover the hollow heartedness 
of the stratagem, and condemn us, not only for the course we have 
taken, but despise us for the weak and transparent artifice by which 
we may have sought to delude their understandings. Let no vote be 
given therefore, under the vain hope, or under the delusive expec¬ 
tation, that the people will be cajoled or deceived, by wrapping up 
the subject in a net of forms. Let it be distinctly understood in this 
house, as it will be understood abroad, that he who yields to 
<upposed rules and questions of order, and votes against laying 
these resolutions on the table, votes against the passage of the 
electoral law, and will be ranked among its enemies. From this 
conclusion, there is no possibility of escape. If the senate, being 
apprised that this house insist on a bill, still refuse to act, then, 
and then only, should we adjourn. Till then we should sit here, 
under the conviction that no vote given incidentally, and with view 
to avoid tlie main question, can be misunderstood by, or disguised 
before the people. 

On this subject, it is our calamity, to have almost every thing 
brought into the discussion. The republicanism of the friends of 
the bill has been called into question. The former passage of 
banks and insurance companies, is now descanted upon. An 
alarm is sounded forth, for the permanency of party discipline, and 
pur new friends,. usual, display extraordinary zeal fdr the safety 


8 


that republican party,'of which they are such recent and active 
members. I will not stop to reply to such insinuations, or to en¬ 
large on such subjects. 1 will only say, I was born, and bred, and 
nurtured, and belong to, and will ever remain in this republican 
party. But I have higher duties to perform than to follow after 
party, and the petty expedients of party discipline. Those wh© 
know me, must also know that in such debates, 1 reluctantly en¬ 
gage ; but when in, I bear my part. If gentlemen wish another 
Tennessee debate, and will set apart a proper time, I promise them 
I will not be absent. But at this time, I am not disposed to pur¬ 
sue such little game. The question concerns the constitution of 
our country. It is a question of vital importance, and involves the 
first principles of our government; and in its consequences, may 
shalte its very foundation. To my mind, I am now called upon to 
give the most important vote of my life. It is a vote, which, in its 
determination, is either to maintain, or to yield, the great principles 
of our revolution. It is to sustain or to reject those sacred principles 
for which our fathers fought, bled and conquered. They had lived 
and suffered oppression under a government, formed of the boast¬ 
ed compound of monarchy, aristocracy and democracy : a govern¬ 
ment, which public opinion could not constitutionally influence ; 
from whose oppressions the people, short of revolution, could find 
no redress, and which depended for its permanency, upon a union 
between two of its discordant ingredients, as a means to correct and 
resist the usurpation? of the other. It was such a government from 
which our fathers rebelled. It was to secure freedom and the in¬ 
dependence of our country, that they established our present gov¬ 
ernment, rejecting in its formation, those checks and balances, up¬ 
on which others have been founded, and boldly resorting to the 
eternal principle of equal rights, and avowing that the form, and ob¬ 
ject of government must ever be, to accord with the public voice^ 
and to promote the public good. To consummate such high ob¬ 
jects, our constitution has been adopted. It guarantees to our citi- 
55ens equal rights : it provides for the elective franchise, and therein 
by pledged its observance of the public voice. The theory and the 
great principle qf our government is, to repose for its safety, upon 
the public will, and to trust for its permanency and for the continu-r 
ed purification of our republican institutions, to the redeeming spirit, 
found in the silent operation of our frequent elections. At every 
election, and on every appeal to the people, the pure fountain 
whence corruption cannot flow, our free institutions are renovated ; 
and by their conformity to the public voice, every citizen is inter¬ 
ested in their preservation; all inducement to rebellion is removed ; 
all necessity for revolution is done away. Do we intend to go on 
and consummate this scheme of self government, so gloriously com¬ 
menced by our ancestors ? If so, why do we pause on this occa¬ 
sion ? Why do we deny to the people the choice of the electors 
for president and vice president of the United States, and usurp to 
ourselves, the exercise of this authority ? We violate the spirit of 


9 


tiie constitution, and break down the great principle of the revolu? 
tioh, lor which so much treasure has been expended ; for which 
so much bipod has been shed. Tell us not of your caucus nomin¬ 
ations, tell us not of the respect to the senate, and of the binding 
force of the rules and orders of this house. Tell us not that our 
party is in danger, and of the necessity to maintain the forms and 
rules of party discipline. Describe not to us the political under¬ 
takers, who haunt our lobbies, and hang upon our deliberations ; 
away with such idle tales ! But awalce ! and behold the precipice 
upon which our country stands ; and tell to this people, that their 
constitution is in danger, and their dearest right is violated. 

Against the course of proceeding, which the friends of the elec¬ 
toral law have proposed to pursue, the gentleman from Broome, 
(Mr. Waterman) and from Livingston, (Mr. Hosmer) have present¬ 
ed a barrier, and interposed a constitutional impediment. They 
insist that no “extraordinary occasion” exists, and therefore, that 
the call oftJie legislature by the executive, is unconstitutional, and 
that we cannot therefore proceed in legislation. They declare 
their desire to obtain the electoral law, and they stop from the vote 
of last winter, solely because the call of the governor is unconstitu¬ 
tional. It is not my province, to deny the purity of the motives, 
under which the gentlemen and their associates have interposed 
their conscientious scruples against legislation ; but it is my duty 
to combat the conclusions, to which gentlemen declare their con¬ 
sciences have led them. I will pledge myself, there shall not be 
left a single point, upon which to hang their tender consciences. 
If they be right in their position, it is indeed a barrier. , It be¬ 
comes proper therefore, that we should deliberately discuss that 
question. 

The words of the constitution are—“ the governor shall have 
power to convene the legislature (or the senate only) on extraor¬ 
dinary occasions.” Under these words, I advance not only the 
proposition, that the call of the legislaturCy and what constitutes an 
extraordinary occasion^ rests in the discretion of the executive—but 
that he is the sole judge—and that there is no power to control him 
in the exercise of that discretion: —And that he can be made re¬ 
sponsible for an abuse of that power only by impeachment. 

Gentlemen say, they think the call of the legislature unconstitu- 
Cional, because no extraordinary occasion exists ; and they there¬ 
fore support the resolution to adjourn. I. deny their right to pass 
upon this subject. But are gentlemen aware of the dilemma in 
which they place themselves ? If we are not constitutionally to¬ 
gether as a legislature, I ask, by what right do we hold posses¬ 
sion of this floor, and forbid the spectators to come in upon us ? 
This house is not ours ; it belongs to the people, whom we forbid 
to come in.—They paid for it. From whence does the Speaker 
derive his right to command silence, and even threaten to punish 
the gallery, for the ardent expressions of its honest opinions ? Will 
gentlemen adjourn^ because we. are unconstitutionally called to 


1(1 


gether ? And aftnr sncli a vote, will tli(?j turn rouiiil and ask 
speaker for his certliiCate, to draw their pay for travel ami attend¬ 
ance ? Can it be supposed that the public feeling will endure a 
determination, that the Call of the legislature on this occasion, is 
constitutional to open the door of the treasury and pay for our 
services ; but unconstitutional, to pass the electoral law, so loud¬ 
ly demanded by the public voice ? Gentlemen must take care, lest 
the purity of their motives, which the decorum of this house com¬ 
pels me to admits shall be openly and boldly denied, by an injured 
people,) 

The constitution of the United States vests in the president, the 
power to “convene both houses of congress, or either ot them, 
on extraordinary occasions,”—and by the haws of congress he is 
also authorised to call out the militia, to “ suppress insurrection, 
and to repel invasion.” These powers are subject to the same 
construction, as the constitution of this state. To pronounce, 
whether the occasion is extraordinary, or whether there is an 
insurrection to suppress, of an invasion, to repel, rests solely in 
the discretion of the executive. Such is the common sense of the 
transaction. The president in such case, can be amenable to no 
power, except by way of impeachment. Any other construction 
would unsettle and overturn the administration of the state or 
general government. 

Whence comes this notion of a constitutional prohibition, against 
the call of this legislature ? It has been sent forth in an elaborate 
“ brief ,published in a late Argiis, and sent to the different mem¬ 
bers of this house, (save myself,) and which the gentleman from 
Broome and from Livingston, have so ably rehearsed on this floor. 
Whose ears have not heard, and whose memories do not declare, 
that the construction of the executive powers now contended for 
so loudly by our nezv republican brethren, first came from Massa-* 
chusetts during the late war ? It was then, that the president of 
the United States acted under the power vested in him, and un¬ 
dertook to call out the militia to repel invasion. It was then, that 
the state of Massachusetts, assumed the very ground, which is now 
contended for by the opponents of the electoral law. The orders 
of the president of the United States were resisted upon the ground, 
that the militia who were called into service—that those who were 
required to obey, were entitled to judge of the extraordinary na¬ 
ture of the emergency, which justified the call. Having them¬ 
selves determined, that no occasion for the call existed, the call 
then, as in the present case, was pronounced unconstitutional. 
Hence it was, that such were the grounds of defence before courts- 
martial, of all those who undertook to disobey, when called as 
the militia, into the service of the United States. The courts- 
martial throughout the United States, maintained the construction 
of those executive powers, as we now contend. The governor and 
senate of Massachusetts, however, combatted this construction, and 
in their zeal of opposition, openly announced, that sooner than 


11 


>’icid to such authority, on the part of the president of the United 
States, they would seek protection, and take shelter under the 
cannon of the bulwark of our religion, then fighting for the liberties 
of the world. 

Are the gentlemen aware, that by the doctrines for which they 
now contend, they are thus arraying themselves in the ranks of op¬ 
position to the republican party ? Are they conscious that the prin¬ 
ciples they contend for, are the same which were assumed by the 
Essex Junto—acted upon by Gov. Strong, and which well nigh 
shook our gove-rnment to its centre ; and in their consequences, 
pointed to “ treason, statagem and spoils,” which led to the Hart¬ 
ford Convention, and w^ere much too far adopted and cherished,by 
that political party, then influenced by those men, who are now 
the busy actors in the revival of those exploded doctrines ; and 
who in terms abandoned their former party on the 14th day of 
April, 1820, when by a public manifesto, they declared the party 
ti'as disbanded and existed no longer. Since the memorable pro¬ 
clamation dissolving the federal party, and to which I recognise the 
name of the gentleman from Broome, and one more on the other 
side of the house, who professed to act on that occasion for them- 
selv^es and their associates ; some gentlemen seem to entertain 
prejudices against all proclamations, and are very ready to pro¬ 
nounce a call of the legislature in that manner, unconstitutional, 
and even dangerous to the welfare of that republican party, about 
w'hich they are now so solicitous. 

Mr. T. next adverted to high judicial authorities in the states of 
South Carolina, Virginia and Pennsylvania, to show', that in the con¬ 
struction of this constitutional prerogative, it was an exercise of 
discretion, from which there w as no appeal, and no responsibility, 
but to the people ; and that, either indirectly, in the forfeiture of 
their confidence, or directly, through the medium of the legisla¬ 
ture, in the form of impeachment. He said the supreme court qf 
the state of New-York had repeatedly established, by judicial de¬ 
terminations, this construction of these executive powers. In 
11th John. Rep. page 150, is a case, testing the correctness of a 
court-mar-tial decision, imposing a fine on the militia for delinquen¬ 
cy, in coming out into the service of the United States. The su¬ 
preme court decided in terms,—“'J hat it was not necessary to 
allege, that a case had occurred, which gave authority to the presi¬ 
dent of the United States, to call out the militia. The president 
alone is made the judge, of the happening of such event, and he 
acts upon his resposibility, under the constitution.” 

Mr. T. then referred to the cause of Marbury vs. Madison, in 
the supreme court of the United States, reported in 1st Cranch, 
page 137. It was a motion for a mandamus to compel the then se¬ 
cretary of state, to deliver the commissions to the judges and per¬ 
sons appointed to ofli ce, on the night of the third of March, before 
Mr. Jefferson came into the Presidency ; and who forbade those 
commissions to be delivered to the hopeful expectants of office.— 


Chief Justice Marshall, then in feeling with the tallea part^r.. 
who were seeking to obtain commissions for office, gave this de¬ 
cision. “ By the constitution of the United States, the President 
is invested with certain important political powers, in the exercise 
of which, he is to use his own discretion, and is accountable to his 
country in his political character, and to his own conscience. To 
aid him in the performance of these duties, he is authorized to ap¬ 
point certain officers, who act by his authority, and in conformity 
with his orders. In such cases, their acts are his acts ; and what¬ 
ever opinion may be entertained, of the manner in which executive 
(discretion may be exercised, still there exists, and can exist, no 
power to control that discretion. The subjects are political. They 
respect the nation, not individual rights, and being entrusted to 
the executive, the decision of the executive is conclusive.” 

Mr. T. illustrated this decision, and explained and commented, 
upon the political history of that period. He also referred to the 
general principles and established doctrines of the law, in con¬ 
structing the rights, duties and powers, given to executors and 
trustees in cases of discretionary authority. 

If, said he, there was any thing of corruption charged upon the 
.executive, it would be our duty to listen to it. But acts of indis¬ 
cretion, are altogether beyond our reach. The executive may as 
well arrogate to pronounce upon the discretion of this body, as| 
we to pass upon the discretion of his acts. If we have the right to 
pronounce on the discretion of others, the measures of the senate 
may meet our condemnation ; and even the decisions of our 
Speaker upon questions of order, may obtain our censure. 

Such has been the uniform construction of our courts—such 
has been the political doctrine of the republican party, from the 
day of Thomas Jefferson, to the present time. I do not impeach 
the motives ol the honorable gentlemen (Mr. Waterman and Hos- 
mer,) and their present associates, for entertaining the old federal 
principles. I attribute it, in charity, to its true source. Unfor¬ 
tunately, those gentlemen were educated in the old school, and have 
early prejudices, and imbibed principles, which their modern as¬ 
sociations, have not yet enabled them to shake off. If we do (ind 
them often falling into error, by mistaking the discipline of party, 
for the soundest principles of government, we still must confide 
in that conscience, to which the gentleman from Livingston, so of¬ 
ten and so feelingly appeals. It is their conclusions, and not their 
consciences, with which I am at varience. 

The great proposition is, that the exercise of this constitutional 
power, is at the discretion of the governor, and at his peril. It 
is assimilated in principle, precisely to the power which is given to 
the president of the United States, in calling out the milifia. The 
great difficulty in the present case, is, that there may be some, 
who may attempt to shelter themselves under the pretended con¬ 
stitutional question, and thereby seek to evade the question of the 
electoral law* But all such disguises will be in rain. The Ameri- 


13 


•^an people are a thinking and sagacious people. They will coiiv 
prebend the length and the breadth, the height and the depth of 
this plausible device. Let those who undertake to exercise their 
discretion, and who (to screen themselves from judgment) say 
that the call of the legislature was not discreet, be apprised, that 
they will be understood in effect to have said, it is not discreet to 
trust the people with the electoral law. The people have de¬ 
manded this law, and they will never understand these nice dis¬ 
tinctions about questions of order and indiscretion, as a sufficient 
reason for their disappointment, and for their blighted hopes. 

[Mr. T. here elucidated his position at some length, and by a re¬ 
ference to cases—but which was lost by the reporter.] 

If we depai't from this rule, the constitution will rest for its 
construction, not on its own pillars, but upon the opinions from 
time to time of pur variable majorities of our variable legislatures, 
in their variable conflicts. If we depart from it, we unsettle every 
thing in judicial proceedings, and in the administration of our state 
and national governments. It is not fixed principles, but the per¬ 
verted will of a dominant faction, which is to give the construc¬ 
tion, and determine the meaning of the constitution. 

For further elucidation, (said Mr. T.) take the cases cited and 
relied upon by the gentleman from Broome, and see if every case, 
when understood, does not prove the opposite conclusion from 
that, for which it has been cited. 

Governor Jay called the legislature in 1798, on account of the 
state of our affairs with France. Will gentlemen say, that the 
disci etion and the constitutionality of that call was to be pronounced 
upon by the party feelings of that day ? If so, 1 ask them, what 
would have been the determination upon the discretion and the 
constitutionality of that call, if the democracy of your country had 
then prevailed in the legislature ? If this does not satisfy, let them 
look at the next case cited by them, in the catalogue of extraordi¬ 
nary occasions. 

Governor Tompkins called the legislature in 1814, on account 
of the then existing war. Notwithstanding they had legislated on 
the subject at their previous session, yet the pressure of the times, 
in the opinion of the executive, constituted an extraordinary oc¬ 
casion ; and required another meeting. I again ask, what judg¬ 
ment would have been pronounced upon the discretion, and the 
constitutionality of that call, if the opponents of the war, had then 
held the majority, in this assembly ? And have we come to this ? 
Has party discipline, and caucus dictation, reduced us so low, 
that the just exercise of executive authority, and the constitution¬ 
ality of legislative measures, are to depend upon casual majorities 
in party times ? 

If gentlemen are not content with the cases cited from our state, 
let them consider the cases of extraordinary calls of congress, by 
the president. Mr. Adams called congress together in 1797, be¬ 
cause of our affairs with France. Who does not remember the 


14 


i'acldents of that ck} ? Whiskey insurreclions—the hot-water war 
—and the black cockades, are instantly presented to our minds. 

If the rule now contended for, be the correct rule for the con¬ 
struction of the constitution, and for the determination of execu¬ 
tive discretion, let the republican party, which gentlemen now 
so violently love, pronounce upon the discretion and constitution¬ 
ality of that call, and of those measures. 

Mr. Madison called congress together in 1814.—They had at 
their previous session legislated on the subject of the then w'ar, 
and at their discretion, had made provision for it. But the presi¬ 
dent finding further provision necessary, deemed it an extraordi¬ 
nary occasion, and again convened them. Did the discretion of 
that call, and the constitutionality of the measures adopted on that 
occasion, depend on the majority which happened then to prevail 
in our national legislature ? If so, let us bow in gratitude to the 
Almighty ruler of events, that our country was preserved. Let 
those, who have left the school of their first love, while they yet 
maintain its principles, inform us, of the peril which awaited us— 
of the fate of our country had the Massachusetts construction then 
prevailed : Had the Massachusetts representatives found in our 
councils, associates, to have constituted a majority, and thereby 
have pronounced the call of that congress, and the measures then 
adopted, unconstitutional. Our enemies might have then march¬ 
ed, unresisted, over our land, and with the besom of destruction, 
have swept us from the face of our country.* 

(Mr. T. proceeded in illustration, at some length, and with an 
animation, which the reporter could not follow.) He insisted, that 
any other principle, than that which he had assumed, would un¬ 
hinge all the just principles of government, and make the constitu¬ 
tionality, or unconstitutionality of a measure, depend, not on its 
merits, but on the fluctuating ascendency of party. 

A precedent, (said Mr. T.) has been produced from George Clin-, 
ton, and read from the journals of congress in 1786, by the gentle¬ 
man from Broome, wherein the governor refused to convene the 
legislature, upon the request of congress, on the ground that it 
did not constitute an extraordinary occasion, and come within the 
scope ofhis authority. Any precedent produced from that vener¬ 
able man, is calculated to weigh on my mind. The house wdll 
pardon me to confess, that the mention of the name of that great 
and good man, George Clinton, awakens in my breast, emotions, 
which I can with difficulty suppress. He was the friend and pat¬ 
ron of my youth. His private virtues are embalmed in the hearts , 
ofhis friends. His earthly remains are deposited at the seat of 
©ur national government, and committed to our nation’s care ; • 
while the affections of a grateful people, constitute a mausoleum,- 
in remembrance ofhis public worth. 

The gentleman from Broome, (Mr. Waterman,) has cited this- 
precedent from George Clinton, with the imposing, and as he deem¬ 
ed conclusive information, that George Ciinton, three several times 


teVused to convene this legislature, upon the request of C 0 Dgres 3 v 
Did it not occur to the gentleman, to inquire on which side his pre¬ 
cedent wouhl prove the most ? If George Clinton refused three 
times, congress must three times have requested. The combined 
wisdom of your country convened in congress, gave construction 
to the executive duties of the governor of this state, and three times 
asked him to conform to their request He refused cofhpliance.. 
The precedent therefore is, on the one hand, the opinion of con¬ 
gress, then composed of some of the worthies of the revolution j 
and on the other hand, the individual opinion of the governor of 
this state. 

But let me not be misunderstood. The precedent of Geo Clin¬ 
ton, when correctlj^ examined, will be found to have no manner of 
relation to the conclusion, for which it is cited. I have lived 
for several years in the habit of social intercourse with that vene¬ 
rable patriot. In his hours of intimacy and ease, it was his de¬ 
light, like the war worn veteran, to recount the political battles 
which had been fought, and the difficulties which had been en¬ 
countered^ in the formation of our government. It was his dar¬ 
ling theme ; and on that theme, it has been my fortune and de¬ 
light, to hear lessons of wisdom from the lips of experience. 

The subject on which George Clinton refused to comply with 
the request of congress, and convene the legislature, was, upon an 
Application to this state to- surrender the imposts for the iDenefit of 
the national treasury. Mr. T. went into a particular and interest¬ 
ing detail of the events of that period, the difficulties on the one 
hand which were found in the progress of the government under 
the old confederation ; the expedients resorted to, in order to 
avoid the embarrassments under which they labored, and the im¬ 
possibility of defraying the expenses of government. On the other 
hand, great jealousy was indicated against too much power in the 
general government. The sovereignty of the states was maintained 
with great tenacity : the importance of the imposts to the state of 
New-York on the one side, and to the confederacy on the other ; 
the reluctance with which they were surrendered by the people 
of this state and by George Clinton, and the collisions arising from 
this controversy, were the leading causes which led to the forma¬ 
tion of the United States constitution. 

If gentlemen will advert to the public prints from 1783 to the 
adoption of the constitution in 1788, they will find, that the states 
were firm and astute in the defence, and the preservation of their 
sovereign rights. They even claimed to check and control the 
general government by an annual account, and scrutiny into its ex¬ 
penditures. Do gentlemen indicate surprise at this fact ? Let them 
be satisfied by looking into the journals of this legislature for 1786. 
The following message will there be found : 

“ Gentlemen —With this message you will receive for the in¬ 
formation of the legislature, a statement of the contingent expenses 
of (Jbe United Stsites^ froai the ist of January to the 31st of De- 


li) 

•cember, 1786, with the letter from the treasury board, accompii* 
Dying the same. GEO. CLINTON. 

New-York, 27th Feb. 1786. 

Under the confederation, we had our custom house and our re¬ 
venue laws. This state held the imposts for its own benefit, which 
it subsequently gave ilp, and which now constitutes nearly one 
half of the revenue of the United States. When this state was 
called upon to surrender that impost for the benefit of ilie union^ 
some of her statesmen then predicted, that if the state did surren¬ 
der this source of-her income, the time might come when our state 
treasury would be drained, and that we might be left to ask in vain 
for a small pittance of the very revenue collected in our state, and 
surrendered by us to the union, to aid in improving the navigation 
of our rivers, and to advance our system of internal improvements. 
Some even ventured to predict, that the time would come, when 
the very revenue which we were called upon to surrender would 
be perverted, and used to secure our degradation as a state ; when 
the general government, freed from the necessity of rendering to 
the states an account of its expenditures, and with a treasury filled 
from our surrendered imposts, would use its influence, and stimu¬ 
late its agents to weaken our state sovereignties^ and invade our 
state rights. Whether such predictions are about to be realized, i 
am not required to pronounce. But I can say, as well from th? 
liistory of our government, as from the words of the venerable 
^iicorge Clinton, it was under the fear that such predictions might 
become realities, that he was induced so strenuously to maintain 
.state rights, and hold so firmly on all sources of public revenuCv 
it was under such impressions, and with such motives, that the re¬ 
fusal to convene the legislature on the request of congress was 
written. 

'i'he difference between the case of Governor Clinton, as cited, 
and the one now under consideration, consists in this, that the 
electoral law has never been acted upon in the senate. The im¬ 
post question had been acted upon by the legislature in the three 
preceding years, and in the last preceding session. Both houses 
kad acted, and had ultimately decided^ and refused to surrender the 
imposts. It W'as therefore correctly answered by George Clinton, 
Uiat the legislature having decided, no extraordinary occasion ex¬ 
isted, to justify a call of the legislature. 

This controversy of the imposts, laid the foundation of the fede- 
i^d and anti-federal parties. It led to the formation of that very 
party, which enjoyed the plenitude of its power in ’88 ; which 
subsequently, in a time of national disaster, sanctioned a convoca¬ 
tion of its leaders, for no legitimate object; which unnerved and 
blasted the energies of our government, by giving the construction 
to executive authority, which is now contended for. But which 
party, my honorable friends, on the best possible authority, dc- 
ehrod to be dissclvctl on the Hth April, 1820. 




17 


{Here followed a strain of irony and elucidation, which the re¬ 
porter did not catch.] 

But, said Mr. T. how stands the precedent alluded to ? George 
Clinton, in his final refusal to cohvene the legislature as required 
by congress, says, in the concluding sentence of his letter, “ I find 
myself bound by inclination, as well as by duty, to persevere.” 
This word ‘‘inclination,” points to the feelings of the parties, and 
adopts the history which has been given of the transaction.— 
George Clinton was the head of the anti-federal party—he was the 
champion of state rights, and the known opponent to the surrender 
of the imposts of this state. He therefore informs congress, that 
his inclination as well as his duty, required him to refuse to con¬ 
vene the legislature, to surrender the imposts, in compliance with 
their request. This presents the subject in another point of view, 
and further elucidates the idea, that the extraordinary occasion, is 
a matter, resting in the opinion of the executive. An extraordi¬ 
nary occasion can never exist, when the executive does not so con¬ 
sider the subject, and thereupon recommend legislation. George 
Clinton could not convene the legislature in compliance with the 
request of congress, as on an extraordinary occasion, and then advise 
them to af^ourn, without legislating on the proposed subject. He 
therefore informs congress, his inclinations prevent the call. The 
president could not have called congress, as on an extraordinary 
occasion , to provide support to carry on the late war, if in his opi¬ 
nion that war ought not to have been carried on. The governor of 
Massachusetts, with the opinions entertained by him of that war, 
could never have justified a call of the legislature, as on an extra¬ 
ordinary occasion, and then have dissuaded them from legislating 
on the subject. Governor Tompkins, believing our rights as a 
people and our honor as a nation, were involved in that war, could 
justly call the legislature, as on an extraordinary occasion, to pro¬ 
vide for its support. While the present executive of this state, 
thought we ought not to provide an electoral bill, when the subject 
was under discussion before congress, he could not have called us, 
and then, have advised us, not to legislate. But when, in his opi¬ 
nion, the “ propitious period” for legislation on the subject had 
arrived, and the public demanded the law, the extraordinary occa¬ 
sion existed, and it was his duty to convene us. 

These cases point to the conclusion, that the extraordinary 
occasion is a matter resting in the breast of the execu¬ 
tive. There can be no such thing, as an unconstitutional call of 
the legislature. He may so abuse his trust, as to incur the penal¬ 
ties of an impeachment. But when we are assembled upon the 
executive call, we are legally and constitutionally together. It 
remains therefore, for us, in the exercise of our discretion, to de¬ 
termine, whether we will proceed and legislate, in conformity to 
the executive recommendation. 

This presents the question in its true light. The subject is thus 
djtested of all its mysteries j and the responsibility is left with us, 

3 


18 


^jpon ‘whom h ought to devolve. The public now look to us, for 
a law giving the choice of electors to the people. That law might 
have passed, in one half the time we have been together, wasting 
our time in improper discussions about the motives of the execu¬ 
tive, and in idle debates, about the constitutionality of the call of 
the legislature, and weaving for ourselves a net of rules and forms, 
as our apology for refusing to pass the law. Away with the petty 
squabbles of party, and the grovelling imputations which have been 
made, that this or that member was influenced in his vote, and in 
his course, on this great question, by the eft'ect it might have upon 
his re-election to this house. I cannot think any member,.on either 
side, so low as to be swayed by such considerations. Those who 
know me, know the compensation can be no object to me ; and 
they also know, 1 have hitherto declined to be elected ; and that 
this is the first time I have been a member of this house ; and if 
my w'ill should be consulted, it would be the last. But wdiile here. 
I shall fearlessly perform my duty. I disclaim being influenced by 
party considerations. I am not to this hour, the partrzan of either 
of the presidential candidates, now in the held. Of those candid-^ 
ates, I have expressed my opinion on a former occasion. But I 
am a partizan for the preservation of the constitution of our coun¬ 
try. The precedent attempted to be established, the doctrines ad¬ 
vanced, and endeavored to be enforced, as safe rules of govern¬ 
ment, in my opinion are calculated to undermine its corner stone, 
and sap its very foundation. I tremble for its consequences. My 
mind has been engrossed by higher objects, than the petty expedi¬ 
ents in party strife. Party collisions, and the little actors of the 
present day, may rise and pass away without excitement. But 
when political undertakers, for party purposes, advance doctrines, 
at variance with all the first principles of our government, and en¬ 
deavor to make this legislature establish precedents, and give con¬ 
structions to our constitution, wdiich have for their object, the de¬ 
feat of the ^mblic wish on this great occasion, it is time the public 
were aroused to a sense of the impending danger. The people 
have demanded in language, w hich is not, and which cannot be mis¬ 
understood, a law for the choice of electors of president and vice- 
president, by the people at large. He therefore, who sets up the 
constitutional question, against the call of this legislature, as a bar¬ 
rier'against the passage of the electoral law, not only defeats the. 
law', but perverts and breaks down the constitutional authority, 
which is necessary to the progress, and to the very existence of the 
government. He pushes off our political bark, wuthout fast to hold 
upon, or oar to steer with, into a stream both deep and rapid. Its 
surges of commotion are already felt, and its current is setting fast 
upon the ruinous rocks before us ; while the fatal cataract below', 
already echoes in our ears. 

In the same breath in which we are told of the popularity seek¬ 
ing measures, and of the unworthy motives, under which some 
members of this house now act, the inconsistent conclusion is urgedt 


10 


upon us, 10 retain the choice of electors in our own hands, and 
trust for the faithful execution of this important duty, to such un^ 
worthy men, rather than confide this choice to the people. It be* 
trays the ruling passion, which now actuates the opponents of the 
law. It points to the true reason, why we last winter voted unani- 
mously for the electoral law—when it was understood, the senate 
would not pass it. Why, we, who are so loud and so bold in our 
desire to obtain this law, are yet so patient under its failure : And 
why we rest so tamely, tangled and tied up with questions of order, 
and with rules of our own creating, and which remain subject to 
our will, to revoke and dissolve at pleasure. 

“■ He that runs may read but what others would not fail to 
understand as a matter of inference, the gentleman from Clinton 
(]\Ir. Flagg) announced as direct assertion. That member, though 
replete with political frailties, has, at least, one virtue which be¬ 
comes a source of public good. He has a chivalrous manner in 
debate, from which the truth is sometimes inadvertently declared. 
In his zeal to criminate, he has asserted, my friend from New- 
York (Mr. Wheaton) is actuated in his course, by a design to pre¬ 
vent a “ sick man from becoming president,” and so “ opposed 
to the election of Mr. Crawford.” fie says, his opposition to the 
measures proposed by the gentleman from New-York, (Mr.Whea- 
ton,) is for the opposite reason, and in order to promote the elec¬ 
tion of the candidate whom he opposes. An honest declaration, 
which few will avow, but the force of which all feel!!! What is 
import ? that those who wish to oppose Mr. Crawford, are willing 
to pass the electoral law, but that those who support him, are 
against the law. Is not this an open avowal, that the result of an 
election by the people, would be different from a choice made by 
this legislature ? This is the point of controversy. 1 rejoice that 
one man is found in the opposition, ready to avow the motives up¬ 
on which himself and his party are acting. This state is agitated 
with this question. This struggle is maintained to prevent the 
choice of electors by the people, because it is a fact admitted, that 
the result will be different from that to be produced from a choice 
by ourselves. The right of election is to be denied to the people, 
the public will is to be thwarted, and the principles of our govern¬ 
ment overturned, to secure the election of a candidate, through this 
legislature, in opposition to public sentiment. And yet do gentle* 
men, as some have done, lay not only one hand, but both hands 
over their consciences, and talk of acting under the sanctity of an 
oath! I forwarn them of their impending danger : I apprize them 
of their self-delusion. The crowded gallery which now hear us, 
which has so anxiously watched the progress of our proceedings ; 
and the public, who shall read the extraordinary story on our jour¬ 
nals, will never extend to us, that charity which some gentlemen 
so loudly claim, for their oaths and consciences. 

Away with this pretence that we wish to pass this law, but can- 
:iot, because we doubt the correct motives of the governor, in con- 


20 


vening the legislature. Away with the delusion, that becaube we 
last winter voted for the bill; we may now cavil about the consti¬ 
tutionality of this meeting, and by pretending we are yet friendly 
to the law, hope to deceive any persons other than ourselves.—. 
Away with that reasoning which can deny, that the object of allow¬ 
ing an independent people to choose their own rulers ; that a com¬ 
pliance with the will of a free people demanding a particular law, 
and a consummation of the first principles of our government, by 
extending the elective rights, does not furnish an extraordinary oc¬ 
casion for executive authority, to convene the legislature of the 
state. 

My word for it, if we adjourn without passing this law, when 
w'e return and mingle with our constituents, some of us will have 
questions put us very difficult to be answered. You may go into 
the field, to the honest farmer, now holding his plough or swing¬ 
ing his cradle through his ripened harvest ; you may tell him the 
story of our doings, ending with having paid ourselves ; you may 
inform him of our sincere desire to have passed tlie electoral 
law ; and you may explain to him how much we were embarrass¬ 
ed with forms and rules of our own making, and within our pow¬ 
er to repeal: you may even assure him, that respect for the sen¬ 
ate, would not suffer us to ask them to pass the electoral law, be¬ 
cause they first asked us to adjourn : but depend upon it, he will 
tell you, emphatically shaking his head, it is a strange affair, which 
he cannot comprehend. He will gay it may all be right ; but he 
can understand only one thing, that the legislature have refused to 
trust the people with the choice of their rulers. And my life for 
the forfeit—rising from his labour, and wiping with his hand, the 
sweat from his brow, he will say to you, I have a book of higher 
authority, than the rules of your house, a book on which I repose, 
as the pillow of my hope, and I have there long since learned^ 
that, “ he, who is not for us, is against us !!!” 

The house adjourned to meet again at 5 o’clock. 

[The house met at 5 o’clock in the afternoon.] 

Mr.Tallmadge—continued—He said the gentleman from Broome 
(Mr. Waterman,) had endeavoured to sustain his constitutional 
objection by citing all the calls of the legislature upon extraordi¬ 
nary occasions, and by the frequent use of the name of Georo-e 
Clinton. The message of George Clinton to the legislature in 
1786, has been read. It is, “the nature of the adjournment of 
the legislature at their last session, obliged me to convene you 
by proclamation. This is a power which cannot, consistently, 
with the constitution, be authorised, but on extraordinary occa¬ 
sions.” If the gentlemen were better acquainted with the history 
of our government, they would not rely on precedents, which, to 
those who know them, prove nothing. 

Before the revolution, and under the colonial government, the 
legislature of this state was always convened by proclamation, and 
^.djourned by prorogation. The governors at that time claime^^ 


21 


jilie same authority over the legislature, then and not exercised by 
the king over the parliament. When the constitution of this state 
was adopted, one of its provisions required the legislative proceed- 
ings to be condu cted according to the usages and customs of the 
colonial legislature. This was supposed to be imperative, and 
for along time it was practised, for the legislature to adjourn, not 
to a given day, but until the governor should convene them by 
proclamation. Such had been the form of the adjournment, at 
the previous sessions. And when governor Clinton convened them 
by proclamation , in 1786, he informed them in his message, of 
the impropriety of their former adjournment. That message, and 
his recommendation, led to the passing a permanent law, fixing a 
time for the annual meeting of the legislature, unless otherwise 
ordered by law or proclamation. Upon the same principle of con¬ 
formity to the usages of the colonial government, the governor of 
this state has been required to attend in person, and deliver his 
speech at the opening of a session : and the legislature made their 
answers, and the executive his replies,—until the usage was re¬ 
voked by the late amended constitution ; and the usage of making 
the executive communication by message, has therefore been sub¬ 
stituted. The precedent cited, therefore, when understood, cer¬ 
tainly proves nothing in support of the argument for which it was 
produced. 

One other case has been cited by the gentleman from Broome, 
on which governor Clinton convened the legislature in 1789, as 
on an extraordinary occasion, to choose senators, to represent 
this state in the senate of the^United States. I am constrained to 
believe, that my friend from Broome has spoken from the “ Jlr- 
gus Brief rather than from his own diligent research, or surely 
he would never have pressed into his argument, such an authority 
as the one last produced. 

It must be remembered, that the constitution of the United 
States, was adopted in July, 1788. Governor George Clinton 
convened the legislature of this state in December, 1788—“ to 
provide for carrying into effect the constitution of the United 
States.”—It was at that session, which continued until March, 
1789, that George Clinton recommended the legislature “ to pro¬ 
vide for the choice of the Electors of President and Vice President 
of the United States, by the people and by general ticket.” It 
was at that session that the senate in their answer to the governor, 
“ approved of giving the choice of the Electors to the people— 
but could not then from want of time.'’’ It was then that the insur¬ 
mountable difficulty of (f time to give the choice to the peo¬ 
ple, was first presented. It was afterwards incorporated into the 
recital of the law of 1792 ; and since continued to the present day 
_and yet exists and now remains immovable. 

The legislature 1788, next endeavoured to choose Electors of 
President and Vice President, and senators, to represent this state, 
la the senate of the United States, by concurrent resolutioos. 


They could not agree in the candidates. They api)oinled joiid 
committees to consult—committees of conference—and then held 
joint meetings of the two houses, with managers to act in behalf ot 
each, and yet they disagreed. The senate, at that time, rctused 
to meet the assembly in joint vote. The result was, that the Elec¬ 
tors were not appointed, and this state lost its vote in the choice 
of the first president. And the further result was, that the two 
houses of the legislature, could not agree in the choice of senators ; 
and this state remained unrepresented in the senate of the United 
States. And the legislature, after spending a fruitless session, in 
attempting to choose, or in other words, to prevent clioosing, 
Electors, and Senators, adjourned to meet again at the annual peri¬ 
od fixed by law. 

It was under such circumstances, and after such proceedings, 
that George Clinton convened the legislature in 1789 ; and which 
is now cited to prove that the call of the present legislature is 
without an extraordinary occasion, and therefore -unconstitu¬ 
tional. 

The proclamation of George Clinton, and his message to the le¬ 
gislature, in 1789, are worthy of conskleration ; and to my mind, 
proves the whol^ case for which I contend ; and certainly justifies 
the present proceedings which are now so violently assailed. 

The proclamation is in these emphatic words—“ Whereas an 
occasion exists which renders it necessary, that the legislature should 
he convened at an earlier period than that appointed by law, for 
their annual meeting, therefore, they are required to meet, on 
the sixth day of July next, at Albany. June 4th, 1789. 

George Clinton.” 

The message is in these words—“ Monday, July 6th, 1789. 

“ Gentlemen of the senate and assembly —I conceived it to be my 
duty to convene you at this early period, that the legislature might 
again have an opportunity of choosing senators to represent this 
state in the congress of the United States: And I flatter myself 
that an occasion so important, will command an approbation of 
the measure. I am sensible, however, that should your session 
be protracted at this season, it would be injurious and inconve¬ 
nient to many of the members. Impressed with this idea, and as 
nothing extraordinary has taken place in the recess, I shall not at¬ 
tempt to call your attention to any other object.” 

1 ask, was ever a case produced more in point ? Could a case 
exist, which would be a more triumphant justification, in form 
and in principle, of the call of the legislature by the present exec¬ 
utive, and of his whole proceedings ? Was the legislature of 1789, 
unconstitutionally convened ? If not, how can the call of the le¬ 
gislature at this time be pronounced unconstitutional ? 

George Clinton did not recite in his proclamation the reasons for 
the call. He assumed his right to pronounce, in his-own opinion, 
upon the extraordinary occasion, and he therefore recites, 

Whereas an occasion exists, which renders it necessary that the 


legislature should be couvened,” thus giving at once his construc¬ 
tion of his executive powers, and of the “ extraordinary occasion. 

In his message, he says, “ nothing extraordinary has taken place 
in the recess^'"' and that “ he conceived it to he his duty to convene 
the legislature, that t\iey might again have an opportunity to choose 
senators.” 

I again ask, is it possible to suppose a case, more in point, or 
an authority more conclusive ? The legislature of 1788, had spent 
a, session on the subject of electors and the choice of senators. 
They had considered, acted and disagreed, and adjourned over to 
the next winter. Yet George Clinton convened them in July, 
1789, by proclamation, that they might again have an opportunity 
to choose senators. 

This house passed, by an almost Unanimous vote, an Electoral 
Bill, which the Senate postponed for consideration—and wholly 
omitted to act upon. The people demanded the passage of the 
law. The public prints proclaimed the charge of corruption in 
the choice of the first officer of our nation ; and unhesitatingly an¬ 
nounced, that the electoral votes of this state were the subject of 
bargain. Under such circumstances, who dare say it was not a 
discreet exercise of executive authority to convene the legislature, 
and recommend committing the choice of electors to the people ? 
Who can say, that by refusing to commit the choice of electors to 
the people, we do not assume an awful responsibility? We to 
whom undue influence and even corruption are imputed, hold the 
exercise of this high trust, in defiance of the public will, and in 
violation of the right of the people and the spirit of our constitution. 
Under such circumstances, who will give us credit for our con¬ 
scientious doubts about the constitutionality of the present call for 
us to assemble ? Who will believe we sincerely wish to pass the 
law, when we are put by with such idle pretences and miserable 
expedients, as are set up on the present occasion ? 

If the argument be correct, that the constitutional authority to 
pronounce on “an extraordinary occasion” is vested solely in the 
governor, and for which he alone is to be responsible, it is proper 
for us next to examine, whether the present call of the legislature, 
was a discreet exercise of his executive authority. How are the 
facts ? A question of great national excitement had arisen. The 
people called for tbe right to choose the electors. The governor 
was informed, and by a senator of the United States, that an attempt 
would be made in congress to provide a uniform rule for the choice 
of electors, throughout the United States. The governor, confi¬ 
ding in such information, communicated his message to this legisla¬ 
ture last winter, in which he recommended us to omit legislation 
on the electoral question, till a “ more propitious period. This 
assembly, however, go on and pass a bill by 110 to 4 votes,, and 
thus express our opinions upon this important subject. These-, 
nate receive this bill—refer it to a committee, who present a vo¬ 
luminous report;, meaning any thing or nothing, but in which they 


2f 


iell us tlial ‘‘ cfToris arc seriously making in congress” on the sub¬ 
ject ; and resolved, that it is inexpedient for us to legislate, while 
those proceedings are there pending. When the senate undertook 
to indorse for the proceedings in congress, by telling us efforts 
were serioiisly making, it was out of the ordinary course of pro¬ 
ceedin'^. It gave alarm to my mind, although it seems to have 
lulled the watchfulness of the executive. The senate of the Uni¬ 
ted States soon after, indefinitely postponed the consideration of 
tlie subject. Congress continued its session more than one month 
after the adjournment of this legislature, and during which time, 
it was competent for the senate of the United States to have resum¬ 
ed the consideration of the Subject, or for the house of representa¬ 
tives, to have originated it anew in that body. After the senate of 
this state, had so gratuitously informed the executive, that the ef¬ 
forts in congress were “ sen’oi/s/y” making, it was surely discreet 
and proper for him to wait till the adjournment of that body, before 
he recommended further proceedings on our part. It was under 
such circumstances the present legislature has been convened— 
and I maintain the call is a discreet and proper exercise of execu¬ 
tive authority. 

We are assembled as a free and independent legislature. Be¬ 
ing hercj clothed with the power of keeping order in the house, 
and of sending committees to the senate, whom we so much re¬ 
spect, and to the executive, we are here in all respects as a legis¬ 
lature. It is at our discretion, whether we will proceed to legis¬ 
late. The recommendation of the executive, for us to pass the 
electoral bill, is not imperative upon us. It is at our option. The 
responsibility rests with us—Not passing the bill, will be under¬ 
stood by the community at large, an evidence against us, of the 
want of will to pass it. 

If gentlemen yet feel embarrassed, with supposed rules of this 
house—with questions of order, and forms of proceedings, where¬ 
by they cannot advocate the passage of the bill, I tell them there 
are no such rules and orders. But to remove all difficulties on 
this point, I propose to suspend and revoke, all such supposed 
rules and orders, for the purpose of acting forthwith on the elec¬ 
toral bill. For such purpose, 1 wish to be understood as now 
hiaking such a motion. But, here this motion cannot be in order, 
because, by reason of the busy actors on this floor, all, of course 
friends to the electoral laWj and by the course of decisions adopted 
by our worthy and impartial Speaker, nothing is in order, but the 
consideration of the resolution from the senate “ iinmediately to 
adjourn.” 

The constitution of the United States provides that “ each state 
ihall appoint in such manner as the legislature thereof may directy 
a number of electors equal to the whole number of senators and 
representatives to which the state may be entitled in the con¬ 
gress.” Thus clearly in its very terms, indicating that the legis¬ 
lature wa5 to direct the manner of the appointment by a legislative 


^ct, and not to retain and usurp to themselves, the exercise (Jf that 
power, which they were authorised to commit to others. The 
language used in another article of the constitution, confSw’ing au¬ 
thority to be exercised by the legislature, fully justifies the con¬ 
struction now insisted upon. It is “ the senate of the United 
States shall be composed of two senators from each state, chosen 
by the legislature thereof for six years.” 

George Clinton was President of the convention which adopted 
the constitution of the United States. He understood its true con¬ 
struction, to give the choice of the electors to the people, and by 
general ticket—and he accordingly, in 1789, by message so re¬ 
commended to the legislature of this state. The senate at that day 
accorded with his recommendation, but proposed a different mode^ 
from “ w’ant of time;” 

Hamilton^ in the 68th number of the Federalist, writes thus in 
defence of the constitution, in relation to the choice of President 
—“ It was desirable that the sense of the people should operate 
in the choice of the person to whom so important a trust should be 
confided. This end will be answered, by committing the right of 
making it, not to any pre-established body, but to men, chosen by 
the people for the special purpose, and at the particular conjuncture 
-—A small number of persons, selected by their fellow citizens from 
the general mass, will be most likely to possess the information 
and discernment requisite to so complicated an investigation. 
Nothing was more to be desired, than that every practicable ob¬ 
stacle should be opposed to cabal, intrigue and corruption.—These 
most deadly adversaries of a republican government, might na¬ 
turally have been expected, to make their approaches from more 
than one quarter, but chiefly from the desire in foreign powers, 
to gain an improper ascendant in our councils. How could they 
better gratify this, than by raising a creature of their own to the 
chief magistracy of the union ? But the convention have guarded 
against ail danger of this sort with tho most providertt and judi¬ 
cious attention. They have not made the appointment of the presi¬ 
dent, to depend on pre-existing bodies of men, who might be tamper¬ 
ed with before hand, to prostitute their votes ; but they have refer¬ 
red it in the first instance, to an immediate act of the people of 
America, to be exerted in the choice of persons for the temporary 
and sole purpose of making the appointment.” 

I will not further pursue this part of the argument. But will 
consider the propriety of giving the choice of the electors to the 
people, as a point admitted—as a proposition to w hich, we are all 
pledged. 

What then is to be the result, if we omit to pass this law ? The 
people of this state are to be refused a voice in the choice of the 
president. The acknowledged reason for our refusal to confide 
this trust to the people is the expectation that a different choice 
can be produced from the intervention of this legislature, than 
what will follow, from the voice of the people at large. And are 

4 


26 


we come to this ? Do we pronounce that we dare not trust the peo¬ 
ple ? And have we the assurance to proclaim, that the liberties of 
this country are more safe in our keeping than when confided to 
the people themselves ? As one individual, I protest against such 
doctrines, and against measures having for their tendency such re¬ 
sults. Shall our assembly, consisting of 128 members, assume to 
answer for one million and a half of freemen, and make choice of 
a president at variance with their will ? Recollect an historical 
fact, that about fifteen thousand voters, now choose a majority of 
the British parliament, which profess to represent and speak for 
the British nation, consisting of more than ten millions of peo¬ 
ple. It was to throw off such a system ; it was to establish a go¬ 
vernment founded on the principles of equal representation, and 
the free expression of the public voice ; upon the extension of 
the elective rights., and identifying every citizen with its preser¬ 
vation, by its conformity to the public will ; for which our fathers 
encomitered the perils of a revolution, and waded to independ¬ 
ence through seas of blood. 

It is for the safety of the constitution ; it is for the preservation 
of the fundamental principles of our government, for which I 
plead. Let them not be brought into danger. If it be proper for 
ourselves to execute this important electoral power, it is more 
proper to confide it to the people, where of right it belongs. If 
the power can safely be executed by us, it can yet be more safely 
executed by the people. I will not say any portion of our house 
are dishonest, and may be approached with improper inducements. 
But I will say, when the electoral law shall be passed, the people 
cannot be approached, and their votes will declare the public 
voice. It is my pride to maintain, that the American people, 
have as much integrity of character, as any people on earth ; But 
yet excepted cases of corruption may be found among us.—Should 
a case be found in our body, and in the execution of this trust, it 
might give the rote, which may oonetitute. the choice,—Amongst 
us, corruption may operate—amongst the people it cannot be 
brought to bear, and will be unable to influence. 

The slanders of the day have even imputed to some of our body 
improper motives, in the votes given the last winter for banks and 
insurance companies. The gentleman from Clinton, (Mr. Flagg) 
has felt it necessary, twice this session, to disclaim such insinua- 
tiom; as against him. If hearers can be found to listen to suspicions 
ugainstus, arising from such paltry inducements, as banks and in¬ 
surance companies, can hold out, how much more ready will the 
world be, to believe, at least, some of us have been corrupted, 
when the inducements of this question, the pelf and patronao-e ari¬ 
sing from the presidential contest, are held up to view ? 

I tremble for the consequences of the precedent, which we are 
this day called upon to establish. What may seem to be the vis¬ 
ions of fancy, may come short, of the sad reality. I fear that our 
Refusal to cousuminate the principle of our government, by confi- 


2? 


ding this great and last electoral right, to the people, may sow 
the seeds of disunion ; and that the story of this day’s doings, may 
be too soon read in the history ofour nation’s ruin. 

When the present generation shall have passed away, and with 
them, the incorruptible integrity which now sways our councils ; 
when some fifty years hence, a corrupt, an ambitious, and an 
aspiring race of younger men, shall occupy the places which we 
now hold, a combination may be formed to impose a president upon 
this free country—a combination cemented by cupidity, excited 
by the hope of preferment and perhaps, even instigated by foreign 
influence. Should such a combination ever be formed, it would 
east about for the means and instruments to accomplish its unholy 
©bjects—It would find our people confiding and unsuspecting—It 
would find nineteen states out of the twenty-four, had placed the 
choice of the electors for president and vice president, in the 
hands of the people, where corruption could not reach. It would 
select two of the greatest states in the union, perhaps Virginia and 
New-York, the one holding at nought the public voice, and re¬ 
gaining in the hands of its lordly freeholders, the choice of the 
electors ; the other contributing nearly one half of the revenues 
ofthe nation, and with a million and an half of freemen, yet dra¬ 
gooned by caucus dictatioir, and guided by party discipline ; .with 
its legislature deiiying the people their electoral right, and hold¬ 
ing in its own hands, the greatest electoral vote of any state in the 
union. With two such states associated, and with one cabal form¬ 
ed at Richmpnd, and another at Albany, they would invite Geor¬ 
gia, whose legislature also holds the electoral vote of that state, to 
unite in the combination and participate in the spoil. A few se¬ 
lected agents, some clothed with judicial influence, and others 
attired in the robes of senatorial, dignity, and all to promote the 
public good, travelling about the country and returning here to 
visit the rooms of the members, and haunt the lobby of this house, 
would complete the .scene. 

This combination may select for its candidate some man whose 
vision shall be already dimmed to their proceeding : who shall sit 
holding untied, the purse strings of the nation ; and by the aid of 
gratuitous loans of public money, wielding the mercenary influence, 
of those artificial beings, whose pursuit is discount, who exist 
without a soul, and whose chief end, is private gain. 

The day may come, when such an association will cease to rest 
in fiction. The time may come, when we, ourselves, or our pos¬ 
terity, may point out about our legislative hall, the agents of such 
a combination, acting under the precedent, which we are this day 
called upon to establish. 

Do I hear it whispered from across the house, that three states 
can never elect a president ? It is so. But who does not see that 
a combination of three states, in times of division and party, may 
bring their favorite candidate into congress—a congress perhaps 
previously committed and pledged by caucus nomination. It is 


here, where the greatest danger, is to be apprehended. It is 
^here, where the flood-gates of corruption, are to be opened, un¬ 
der the guidance of foreign ministers, and the open and secret 
agents of despotic kings, wishing to blot our government, from the 
list of nations. 

Who can doubt, but the form of our government, excites the en¬ 
vy and hatred, of all the governments of Europe. It is an asylum 
to the oppressed of the human race. It is a terror to the crowned 
heads of the whole world. They are all interested in our destruc¬ 
tion. Our example, is at war with their existence. On looking 
around, we find no friend who can come to our assistance, in an 
hour of peril and disaster ; we must rely solely upon the strength 
of our own arm for our national safety. We stand insulated and 
^one, with the whole world in opposition. 

Cast your eyes over the map of the world, and mark the dark 
picture, which lies before. Spanish America, has indeed broken 
the chains of her slavery, and is now struggling to gain a place 
amongst the nations of the earth. But when we look at her past 
and present condition, can we ever hope to find a coadjutor in her ? 
They have slept for centuries in the depth of human degradation. 
Ignorance and superstition was the policy by which they have been 
ruled. A late manifesto from the Patriots informs us, that no com¬ 
mon school had been permitted, during the last three centuries ; 
and even till the revolution, there were but three printing presses, 
and those under the direction of the Inquisition, and used only to 
announce the royal orders. A people which have been so ensla¬ 
ved must require a lapse of time, before they can be fitted to enjoy 
what we understand by liberty. 

Africa, lies as barren of intellectual light, as the burning sands 
of her deserts. Civil government is unknown to her sons, save 
on the barbary coasts, where they associate for rapine and plunder. 
Asia, lies a dreary waste ; a wide field for civilization and missiona¬ 
ry enterprise. There the EmpAror of China, disdaining to be of 
human origin, or to acknowledge even the members of the holy 
alliance as his equals, claims to be the brother of the Sun. 

Look at Europe ; Spain, is degraded, ruined, and lost. The in¬ 
quisition, presides over her destinies. France, has struggled for 
liberty. She has passed the throes of birth ; endured the agonies 
of death, and fallen back into the arms of legitimacy. Austria, lies 
prostrate beneath the weight of her feudal system w^hich yet flour¬ 
ishes there ; and whose theory is, that kings and nobles were born 
to rule and the people to obey. Prussia, sleeps in the arms of 
despotism ; while Russia, with her autocrat and her countless 
hordes, hangs like a vast avalanche ready to precipitate herself 
from the north, and in her descent, to overwhelm, even the govern¬ 
ments of Europe. This mighty power, conscious of her strength, 
and aiming to extend the empire of the holy alliance, till it shall 
become universal, joins with the murderous Turk, to erase from 
the face of the earth, the cause of Grecian liberty. It is this migh- 


ty power, for whose schemes of dominion, Europe and Asia are 
too limited, which claims empire on the continent of America, and 
is now in collision with us for territory. 

Surrounded by such associations, it is time we awake to the perils 
of our situation ;—away with the petty strifes of party contentio 4 
—aw^ay with the little expedients, to advance this or that candidate 
to office. The question now under consideration, is one of vital 
importance to the safety and to the first principles of our govern¬ 
ment. Let us be cautious, lest by our divisions we invite despotic 
governments to send their emissaries among us. Let us be cautious, 
lest in eager pursuit, of chimerical objects, we should jeopardize 
the blessings we enjoy, and lose this precious opportunity of com^ 
pleting, what other nations have been unable to effect, the estab¬ 
lishment of a representative government, emanating entirely from 
the people. According to our determination, the people of this 
country are to be admitted to the full participation of their elective 
rights ; they are to feel it is a government, administered by them¬ 
selves ; and that its free institutions are depending on them for 
Siifety and support: or, they are to be excluded from the choice 
of their own rulers, and held at variance with their own govern¬ 
ment. When foreign foes shall march upon our land, shall we, 
the puny members of this legislature, and who have usurped the 
choice of the president of this nation, step forth to maintain his ad¬ 
ministration ? or shall we then, without our shoulders to the wheel, 
in humility, pray for assistance to that Hercules, whose right and 
whose will, we this day, dare to outrage ? Let not our party zeal, 
drive us to adopt measures, so much at variance with the great ob¬ 
jects of our revolution, and thereby establish a precedent, which 
may endanger our safety as a nation. 

Look at Poland : our country may there learn from her misfor¬ 
tunes, a lesson of wisdom. She once possessed an elective king. 
But even this mockery of popular rights, was offensive to the des¬ 
pots of Europe. The emissaries of foreign powers, produced di¬ 
visions among her citizens, and intermeddled with their elections. 
A convocation of her Diet was a summons to arms ; and the elec¬ 
tion of her king, was the beginning of war. Her citizens became 
martyrs to their country. But Poland was dismembered : and the 
ruthless hand of despotism, has wiped her name from the map of Eu¬ 
rope. Her valiant son, who was once with us, and fought for the 
liberty which we now enjoy, returned home, and long struggled 
for the existence of his country. But so disastrous was her fall, 
that even 

^^Hope,for a season, bade the world farewell! 

^^And freedom shrieked, as Kosciusko, fell, 

Jn this gloom, through which we have travelled, I admit, that, 
excepting our own country, it is from England only, where a ray 
Of^i^jit breaks forth to illt^mine the “ pitchy darkness of the chilly 


30 


jjiglit,” which rests upon enslaved man. But mark how slow, eve.if 
there, has been the progress of the human mind, in the science of 
civil government. Sixteen centuries have rolled away, while her 
subjects have hugged their chains, and joined in the chorus to the 
Divine right of Kings. The boasted Magna Charta of English 
freedom, was a contract extorted from King John at Runnymede, 
for the benefit of the nobles ; and without recognizing the common 
people, as entitled to a share in the distribution of political power. 
It was not until the revolution ot 1688, that the people were first 
acknowledged and recognized, as a component part of that govern¬ 
ment. It was then a question solemnly debated in the British Par¬ 
liament, in the shape of resolutions ; whether there was an original 
contract between the king and the people. A vote being carried 
by a small majority, in favor of the people, justified a second reso¬ 
lution, that the king had violated the contract, and had abdicated 
the government. This measure drove James 2d into exile, and 
put William and Mary on the throne. It overturned the maxim of 
hereditary indefeasible right, and consummated the glorious revo¬ 
lution, establishing English freedom. 

Until after this period, the boasted parliament of Great Britain 
sat, not in its own right, and as the representatives of the people, 
but, as the servants of the crown ; and attended by its officers. 
Elizabeth told three successive parliaments, they were her ser¬ 
vants. She forbade them to debate, and commanded them to an¬ 
swer, to such business as her crown officers laid before them, by 
a single “ aye,” or “ wo.” 

Notwithstanding the revolution of IGSS", yet by reason of the im¬ 
perfect system of the right of suffrage, in the choice of members of 
parliament, so slow was the operation of the public voice, and so 
little were the people concerned in the affairs of government, that 
in 1771, it was insisted on, as a contempt of parliament to publish 
its proceedings. Five printers, were at one time, brought up for 
contempt, not for misreprpsjpnting nr abusing, but for publishing to 
the commupity, information of the state and progress, of business 
in the house of commons. 

How differently has been the theory and the practice of our go¬ 
vernment ? For the darkness of ignorance, we strive to substi¬ 
tute the light of intelligence. Our common school system, has 
carried information into, and ennobled, the lowest grades, of our 
community. Our people have become habituated to self-govern¬ 
ment, and are entitled to an equal voice in the choice of their ru¬ 
lers. Instead of bringing up printers for contempt, who publish 
our legislative proceedings, we court public observation, and en¬ 
courage stenographers to report, and inform the public mind. It 
is the theory of our government, to repose for its safety, on the 
public feeling ; to trust for its perpetuity^ on the free exercise of 
the elective right. Let us then rise above the narrow views of 
party strife, and fixing our hearts and our hopes, on the final con¬ 
summation of our system of government, in giving this last elective' 


0 

31 


right to the people, we shall preserve unbroken the spirit of our 
constitution and the affections of a free people. 

We ought to refuse this resolution from the senate to adjourn. 
Let us declare our opinion in favor of passing the electoral bill. 
Let us send a committee to advise with the senate. If they still 
refuse to act; we shall then have performed our duty. The re¬ 
sponsibility will rest upon them. 


4 


« 

\ 















V? j .. 


m7%V* •K? ' “J. L ** 

»^--I' f - imm ■ 

WV •■; .''i#^-' ’ .Uj'.' tP<' ■ 

Ja". ■'. *'‘'**./ ■ '.■■ ' ' • ■■> 'ii 


s¥;. ■ ■ ■^,^'■'1 ■ ■■■ 

l.mi- 



V' ’If ; Mjt«;;,;.' 

'-’s- /•, 

•■■ > s ■. ■ 



' ! ‘ ' '■■|i■l■'‘ ’ ■BQKR 

f*' ’/ »,T** , t ' I'SsiK * ff '^V T 

. . •!. •'V '•■ ' '*<*' *M 'A.'' . vi j'' ‘ *," li>il ' ‘ 





•■ ■'■ '■>} ’■' V'-'’ 


mXr 




4 f 


^HHHD ' . ‘‘/■Aj^jv , ■^i*’ ■' Sw * i^3^3 

nOBH, ■■■ ■ .,f#i*!.S ' r-Si* -fl 


\ 


U * - 
* -• 




/ 


f'^ ■ 

-■ k.'f 


£’ » ' • 

j" ' I 


r:- 


'«• 


1 ■ ■ ■ 

M .• k . • 






■A*- 7< 

' /% . ti ' 


. 4, . ' '» 

• * > * * 


t .1 ■*- 


C •?%*£! 

A'^ » 


V \ ’'v' :■ *' ^^ jSHyPW. ' i'.M' 

i V .' £fi3aSUj ^ 


4 



HBK^ ' **HI ' ^ ji^ 


^•1 











